Judging John Yoo

The ruling that could actually lead to accountability for torture.

In 2002, Justice Department lawyer John Yoo wrote a memo recommending that Jose Padilla, arrested in Chicago in the wake of 9/11 and held on suspicion of plotting a dirty-bomb attack, be classified as an enemy combatant. Yoo also wrote memos arguing that American law does not prevent the president from ordering such enemy combatants tortured. This January, after enduring years of abuse in prison, Padilla sued Yoo for violating his constitutional rights.

And a week ago, Judge Jeffrey White ruled that Padilla’s allegations were plausible enough to justify denying Yoo’s motion to dismiss the lawsuit. White was appointed by George W. Bush the year Yoo was writing his memos.

White’s decision is the first of its kind: Until now, although other lawsuits have been brought, no government official has faced personal liability for his role in the torture or deaths of detainees. But it probably won’t be the last. These cases are just beginning to address the fraught questions of justice that have emerged in the aftermath of the Bush era—what atrocities were committed in the name of national security, who bears responsibility, and how should they be punished? Although neither the Obama administration nor most members of Congress want to deal with these questions directly, they’re even more opposed to letting judges (and juries) take a crack at them. Padilla v. Yoo is an example of a surprising development: a conservative judge putting pressure on the Democrats in Washington to create some system of accountability for the Bush administration. It could help spawn more such rulings.

Victims of torture can seek damages in federal court because the Constitution gives private individuals the power to sue government officials who violate their fundamental rights. In 1971, the Supreme Court said that Webster Bivens could seek money damages from the federal drug enforcement agents who had searched his apartment illegally. Since then, Bivens liability has become a crucial tool for punishing police abuse and thus also deterring it.

Padilla and other 9/11 detainees aren’t interested in suing the interrogators and guards who abused them. (And money isn’t the issue, either—Padilla is seeking $1.) Their real goal is judicial condemnation of the government officials who authorized the unconstitutional treatment. That’s why Padilla is going after Yoo, who in addition to writing legal memos also, Padilla says, played a policy-making role. In a separate suit in South Carolina, Padilla is also suing other former Bush officials who controlled the military brig where he was held, including Donald Rumsfeld and Alberto Gonzales.

In order to hold high-ranking government officials liable, plaintiffs need strong evidence that the officials personally authorized the conduct. Just last month, the Supreme Court made it a lot harder to get that evidence: It dismissed the lawsuit brought by Javaid Iqbal, who was rounded up in New York after 9/11 along with thousands of other Muslims, against John Ashcroft. The court held that Iqbal hadn’t provided enough preliminary evidence to justify “subjecting high ranking Government officials … to the burdens of discovery.” That’s right—he didn’t have enough evidence to go get the evidence he needs to prove his claims.

In light of Iqbal, Judge White’s opinion represents a crucial precedent. White held that Padilla has made sufficiently specific allegations to justify discovery against John Yoo and that Yoo’s official status as a DoJ lawyer did not give him immunity from suit. White understands the highly political environment that he’s in. Summarizing recent reports about Obama’s disinterest in criminal prosecution and the lack of progress in Congress on a truth and reconciliation commission, the judge wrote that “[a]lthough the Court does not rely on the state of current events to support its decision, it is aware that other branches of government and professional forums have not acted to provide an alternative remedy for the constitutional violations alleged in this case.”

White’s decision is a major blow not only to past Bush officials but also to Obama’s DoJ, which urged White to throw out the lawsuit. The new administration has repudiated Yoo’s legal memos, but it still defended him in court. Now, the administration has three options.

First, it can accept the decision rather than appeal. This would allow Padilla’s attorneys to proceed with the evidence-gathering of discovery: reviewing Yoo’s classified memos, reading his e-mails, and even questioning him under oath. Although the government could try to keep what Padilla gleans from this confidential, Padilla’s lawyers will correctly argue that the public has a strong interest in seeing the material: The American people deserve to know which officials set our interrogation and detention policies. Scores of detainees would then use the evidence from Padilla’s discovery to establish their own plausible legal claims. The administration isn’t likely to go for any of this.

A second alternative is for DoJ to assert the state secrets privilege to argue that no more evidence about Padilla’s treatment may be revealed. The privilege has long been used to prevent the release of top-secret information during litigation. The Bush administration dramatically expanded it in order to get entire lawsuits dismissed, including a suit from German citizen Khaled el-Masri, who had been tortured by the CIA at its Afghan black sites because the agency thought he was somebody else.

Will the administration assert the privilege to protect Yoo and other former officials? As a candidate, Obama opposed the Bush administration’s abuse of the privilege; as president, he has said that it should be reformed and has appointed some of its harshest opponents to the DoJ’s Office of Legal Counsel (where Yoo used to work). But, to widespread anger, his DoJ has repeatedlyembraced Bush’s maximalist vision.

Asserting the state secrets privilege in Padilla v.Yoo would draw international condemnation and would surely give momentum to the Senate’s current effort to roll back the privilege by statute. The 9th Circuit court of appeals, where Padilla v. Yoo is being heard, recently rejected the administration’s expansive view of the privilege. It’s not clear whether Attorney General Eric Holder is willing to further damage his reputation in order to save his predecessors’.

That leaves the administration with a simpler—but equally fraught—next step: appeal Judge White’s ruling on the grounds that Yoo has immunity from the suit and that he didn’t actually cause the constitutional violations. That appeal would buy Yoo and the government time by delaying discovery. But it could also yield more rulings the government won’t like, since the 9th Circuit has become increasingly skeptical of the DoJ’s arguments. And then Padilla v. Yoo could be left in the hands of the Supreme Court.

No matter how the Obama administration chooses to proceed, the decision is a major blow to its pursuit of closure on torture. No judge likes to be first; now White has taken that step. If other courts follow the lead of Judge White and the 9th Circuit, new evidence will surely emerge, further bolstering other detainees’ claims.

And that’s why Padilla v.Yoo could become a landmark. The continued pressure emanating from the federal courts could push Congress to establish a truth commission or even Attorney General Holder to appoint a special prosecutor. Accountability for torture has slipped out of the news lately. But it will come back.